RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00868

xxxxxxxxxxxxx	COUNSEL: XXXXXXXXXXXX
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

He be given a 20-year active duty military retirement.

APPLICANT’S CONTENTIONS

The Air Force unlawfully and unjustly separated him contrary to Title 10 U.S.C. § l168(a), Title 10 U.S.C. § 1186, and Air Force Regulations, by twice amending his separation orders on the day on which he completed 20 years of active federal commissioned service.  The amendments attempted to back-date his "official" separation to the day before his separation orders were dated and the day before he received the subsequent amendments.  In essence, his higher-level command attempted to back-date his discharge date to the day prior to his receipt of his amended separation orders in a wrongful attempt to erase a day in which he was still performing official duties as an active duty Air Force officer. This egregious abuse of amending official orders is an obvious, wrongful attempt to retroactively discharge him the day before he qualified for 20 active years of federal commissioned service in the Air Force.  Aggravating the wrongful discharge injustice, the Show Cause Authority failed to order the medical evaluation required by AFI 36-3206, Administrative Discharge Procedures for Commissioned Officers, prior to the Board of Inquiry (BOI).  This failure is especially egregious because of the evidence that his conduct, the basis for the BOI, likely was the result of psychological trauma suffered during his deployments and aggravated by the stressors he suffered upon his return.  Moreover, the BOI displayed its lack of impartiality through its makeup and the weight, or lack thereof, it gave to the mitigating and extenuating evidence before it.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force lieutenant colonel (O-5). 

On 29 Mar 19, AF Form 3070, Record of Nonjudicial Punishment Proceedings, indicates the applicant received nonjudicial punishment (NJP), Article 15 for physical and verbal abuse of his spouse.  He received a forfeiture of $4,499.00 pay per month for 2 months.  The appellate authority granted his appeal in part and reduced his forfeiture to $2,500 pay per month for 2 months.
On 19 Jun 19, AF Form 707, Officer Performance Report (OPR), indicates the applicant was issued a referral OPR for the period of report from 2 May 18 thru 1 May 19 for not meeting standards due to his behavior of berating and verbally threatening his spouse.  

On 20 Jun 19, the applicant submitted a rebuttal stating the BOI found he did not assault his spouse and that the profane outbursts were due to a very tense situation where he faced a catastrophic threat to his life due to threats made by his spouse and the financial hardship caused by his spouse.

On 26 Aug 19, the Air Force Personnel Board considered all evidence of record and determined the applicant’s misconduct warranted a general (under honorable conditions) discharge.  The basis for the separation is allegations that the applicant engaged in conduct unbecoming an officer in violation of Article 133, of the Uniform Code of Military Justice (UCMJ).  The applicant made the following statements to his wife: “I will slit your throat while you sleep and watch you bleed out,” “I want to beat the shit out of you,” “I would have killed you long ago if this god-damned feminist country wouldn’t lock me up,” “I’d love to smash your brains and shit on them,” “Why don’t you go hang yourself you stupid bitch,” and “I will smash your fucking skull.”  These allegations along with an allegation of grabbing his wife’s arm and pushing her with his chest until she hit a wall were initially referred to a General Court-Martial.  After the respondent’s wife declined to participate in prosecution, the 18th Air Force Commander entered into an agreement with the respondent to withdraw and dismiss the court-martial charges in return for respondent accepting NJP and agreeing to proceed to a BOI.  The respondent accepted NJP, forfeitures of pay and a reprimand.  The BOI was held 2-4 Apr 19 and determined that the respondent did not assault his wife but did make the profane statements which constituted conduct unbecoming an officer based on his admissions and recordings of the statements.  The BOI recommended discharging the respondent (applicant) with a general (under honorable conditions) service characterization.

On 27 Aug 19, action on behalf of the Secretary of the Air Force determined the applicant shall be discharged under the provisions of AFI 36-3207, Separating Commissioned Officers, and AFI 36-3206, paragraph 3.6.4 for serious or recurring misconduct punishable by military or civilian authorities, with a general (under honorable conditions) discharge.

On 28 Aug 19, AF IMT 100, Request and Authorization for Separation, indicates the applicant’s character of service as general (under honorable conditions) with an effective date of discharge of 6 Sep 19.  This date of 6 Sep 19 was amended to 28 Aug 19 and then again to 27 Aug 19 as indicated on the AF IMTs 973, Request and Authorization for Change of Administrative Orders.

Dated 29 Aug 19, DD Form 214, Certificate of Release or Discharge from Active Duty, reflects the applicant was separated with a general (under honorable conditions) discharge after serving 19 years, 11 months, and 29 days of active duty.  He was discharged with an effective date of 27 Aug 19 and with a narrative reason for separation of “Unacceptable Conduct.”

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C and E.

APPLICABLE AUTHORITY/GUIDANCE

On 3 Sep 14, the Secretary of Defense issued a memorandum providing guidance to the Military Department Boards for Correction of Military/Naval Records as they carefully consider each petition regarding discharge upgrade requests by veterans claiming PTSD.  In addition, time limits to reconsider decisions will be liberally waived for applications covered by this guidance.

On 25 Aug 17, the Under Secretary of Defense for Personnel and Readiness (USD P&R) issued clarifying guidance to Discharge Review Boards and Boards for Correction of Military/Naval Records considering requests by veterans for modification of their discharges due in whole or in part to mental health conditions [PTSD, Traumatic Brain Injury (TBI), sexual assault, or sexual harassment].  Liberal consideration will be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on the aforementioned conditions.

Under Consideration of Mitigating Factors, it is noted that PTSD is not a likely cause of premeditated misconduct.  Correction Boards will exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct.  Liberal consideration does not mandate an upgrade.  Relief may be appropriate, however, for minor misconduct commonly associated with the aforementioned mental health conditions and some significant misconduct sufficiently justified or outweighed by the facts and circumstances.

Boards are directed to consider the following main questions when assessing requests due to mental health conditions including PTSD, TBI, sexual assault, or sexual harassment:

a. Did the veteran have a condition or experience that may excuse or mitigate the discharge?
b. Did that condition exist/experience occur during military service?
c. Does that condition or experience actually excuse or mitigate the discharge? 
d. Does that condition or experience outweigh the discharge?

On 25 Jul 18, the Under Secretary of Defense for Personnel and Readiness (USD P&R) issued supplemental guidance to military corrections boards in determining whether relief is warranted based on equity, injustice, or clemency.  These standards authorize the board to grant relief in order to ensure fundamental fairness.  Clemency refers to relief specifically granted from a criminal sentence and is a part of the broad authority Boards have to ensure fundamental fairness.  This guidance applies to more than clemency from sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  Each case will be assessed on its own merits.  The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each Board.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, the Board should refer to the supplemental guidance, paragraphs 6 and 7. 

On 20 Sep 21, the Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit D).

AIR FORCE EVALUATION

AFPC/DP2SSR recommends denying the application.  On 27 Aug 19, the applicant was discharged under the provisions of AFI 36-3206, “Unacceptable Conduct” with an under honorable conditions (general) service characterization.  He served on active duty for 19 years, 11 months, and 29 days.  The Secretary of the Air Force Personnel Council (SAFPC), acting on behalf of the Secretary of the Air Force, approved and directed the applicant’s discharge on 27 Aug 19.  Further guidance provided by AF/JAA and AFPC/JA directed that the applicant’s date of separation (DOS) should be changed to match the date of the SAFPC decision instrument.  As a result, the applicant’s DOS reflects 27 Aug 19.

The complete advisory opinion is at Exhibit C.

The AFRBA Psychological Advisor completed a review of all available records and finds insufficient evidence to support the desired changes to the applicant’s records.  The applicant’s legal counsel contends there was failure to order a medical evaluation as required by AFI 36-3206 prior to the BOI.  There is no evidence that the applicant was required to receive a mental health evaluation prior to the BOI.  A review of AFI 36-3206 finds that a mental health evaluation must be conducted when a mental health disorder interferes with the officer’s performance of duty.  The applicant was not referred to the BOI because of his performance issues and in fact, the applicant was described to be an “invaluable asset to the Air Force and its airmen and the warfighter of both the Air Force and Army” at his BOI hearing.  The applicant was referred to the BOI due to his off-duty conduct of being unbecoming of an officer and thus, a mental health evaluation is not required.  Although the applicant did not receive a formal evaluation specifically for the BOI, he did receive two comprehensive mental health evaluations in the form of a fitness/suitability evaluation for a flight waiver in May 18 and a Sanity Board evaluation in Nov 18.  Both of these evaluations were completed after allegations were made against him by his wife and in relative close proximity to his BOI conducted around the week of 1 Apr 19.  Furthermore, the applicant was receiving individual psychotherapy services for his stressors at the time coinciding with this BOI hearing.  Results from both evaluations and information documented in his mental health treatment records were consistent.  All evaluations and records found he had multiple stressors in his life identified as marital, financial, and legal issues causing him to feel anxious and depressed.  He was given a diagnosis of an Adjustment Disorder in relation to his situational stressors.  None of these evaluations or treatment records found his behavioral changes or conduct resulting with his BOI were caused by the psychological trauma of his deployment related experiences as claimed.  

Sufficient information was gathered from his fitness/suitability, Sanity Board evaluations and mental health treatment records to make an informed assessment of his functioning in lieu of a formal evaluation for the BOI.  An additional evaluation would not be necessary as all of his previous evaluations and observations were consistent, and it is highly doubtful another evaluation would have provided new or different information that would have altered the outcome of the BOI hearing and his discharge.  The applicant’s Sanity Board evaluation had addressed his deployment experiences in the evaluation report stating the applicant reported four combat deployments over the course of service.  He reported providing medical services to service members in addition to his duties as a flight surgeon.  He stated that he also took part in medical evacuation missions.  He reported some instances of being subjected to small arms fire and mortar fire but reported no past or current symptoms of combat stress related symptoms.  He stated the most difficult experience he had while deployed was in 2016 in his capacity as a medical officer, dealing with suicide of an officer who was under investigation for allegations of sexual assault.   The board evaluators also assessed him for possible Acute Stress Disorder based on his deployment experiences and they were able to rule out this diagnosis.  The board reported the applicant had several deployments over the course of his military career; however, he had no reported history of exposure to active combat situations and, most importantly, has no reported history of symptoms linked to occurrences in combat zones.  The stressors experienced by the applicant, while significant, do not fit the description of traumatic events as defined by the Diagnostic and Statistical Manual of Mental Health Disorders (DSM-5).  The board continued, thus, ruling out a diagnosis of Acute Stress Disorder.  He was not given any mental disorder diagnosis to include Post-Traumatic Stress Disorder (PTSD) in relation to his deployment experiences and thus, indicating his deployment experiences had no impact on his psychological and emotional functioning.  The applicant had consistently denied he had sexually and physically assaulted his wife.  The BOI had determined the applicant did not assault his wife (allegation 1) but did find he had used vulgar and profane statements to his wife (allegation 2).  The applicant had admitted to engaging in vulgar and aggressive language towards his wife during his BOI testimony.  His vulgar language usage heard in recordings presented during his BOI hearing were in response to his arguments and marital conflicts with his wife at the time.  His medical records and the applicant’s personal statements for this petition identified the applicant had recurring marital problems for several years that eventually became overly contentious and volatile.  One could argue that his anger and verbal outbursts were symptoms of his anxiety and depression, but again, these symptoms derived from and were secondary to his marital problems.  Though his verbal outbursts could be explained by his mental health condition, this psychological advisor opines his behaviors could not be excused or overlooked.  The applicant made several threatening statements to his wife over multiple occasions.  Whether or not he was provoked, his behaviors were considered to be egregious enough for the BOI to find his behaviors as unacceptable and an administrative separation with an under honorable conditions discharge was warranted for the applicant.  The decision is at the BOI’s discretion and purview.  In conclusion, there is no evidence his psychological trauma from his deployment experiences was a factor to his behaviors and conduct for which he was discharged from service.

The Board may elect to apply liberal consideration to the applicant’s request due to his contention of a mental health condition, however, since there is no evidence his deployment experiences caused his emotional distress and behavioral issues resulting with his conduct and BOI as contended; his condition or experience does not outweigh his discharge.  Again his anger and verbal outbursts deriving from his anxiety and depression caused by his marital stress may explain his behaviors, but they do not outweigh his discharge due to the egregious nature of his vulgar language and behaviors that were considered to be unacceptable behaviors and unbecoming of an officer by the BOI.  All evaluations found his situational stressors of marital, financial, and legal problems caused him to feel anxious and depressed causing his behaviors and conduct leading to his BOI hearing and discharge. There is no evidence his deployment experiences caused any mood or behavioral changes causing his conduct, BOI hearing and discharge.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 20 Dec 21 for comment (Exhibit F), and the applicant replied on 4 Jan 22.  In his response, the applicant’s counsel contends the applicant’s mental health is not the primary basis for his application.  He is being denied a retirement after serving 20 years of active commissioned service.  His command, with no legal or regulatory basis, backdated separation orders and discharge documents to void a portion of his active service time so he would not qualify for retirement.  Neither advisory fully responds to the main issue in this case regarding the backdated orders nor addresses the undisputed fact that the applicant was performing duties as an Air Force officer beyond the date of his twice “amended” orders.  The applicant had no hand in delaying or extending his separation date. There is nothing he did or failed to do that hindered or slowed the processing of his case.  Because of the BOI, the applicant was under regulatory restrictions that precluded him from requesting retirement.  By backdating the discharge orders, the Air Force is attempting to resolve it’s processing of this case by an illegal administrative erasure of the fact that the applicant completed 20 years of continuous active federal commissioned service prior to his actual discharge date.  This attempted improper manipulation of the system is immoral and unjust.

The applicant’s complete response is at Exhibit G.

ADDITIONAL AIR FORCE EVALUATION

DAF/JA recommends denying the application finding insufficient evidence or allegation of error or injustice.  In the applicant’s arguments regarding improper separation, there are a number of allegations about backdating, and allegations about the Air Force’s intentions. We do not address these allegations as they are immaterial to our analysis. Rather, we narrow our analysis to whether under 10 U.S.C. § 1186(a) there was legal error in the Air Force’s conclusion that the applicant was separated on 27 Aug 19.  We do not consider the allegedly backdated discharge notifications to be dispositive.  The U.S. Court of Appeals for the Fifth Circuit considered the question of how the delivery of a DD Form 214 impacts a member’s separation date.  It found that the language of 10 U.S.C. § 1168(a) “does not require actual delivery of DD Form 214, and legislative history reveals that the purpose of the statute is to ease the military’s administrative burden associated with discharges.  Hinging a service member’s status on whether he knew the exact date on which his DD Form 214 was issued would be inconsistent with text and purpose of statute.” United States v. Butler, 637 F.3d 519, 2011.  The U.S. Court of Federal Claims also analyzed 10 U.S.C. § 1168(a) and held that the final pay does not need to be received by a member, but rather that a substantial part of the final pay only needs to be ready for delivery to service members on their separation date.  See Spehr v. United States, 51 Fed. Cl. 69, 2001.  We find that these rules apply to the paperwork that the applicant received notifying him of his separation date.  Notification paperwork was for the applicant’s awareness; it was not the separating instrument.  Any changes of notification regarding the applicant’s separation – which only served to inform him of when the separation date would be – are not dispositive to the present question, as that would be inconsistent with the text and purpose of the statute.  Rather, the salient factors are contained within 10 U.S.C. § 1168(a) itself: 1) Whether the applicant’s discharge certificate or certificate of release from active duty was ready for delivery; and 2) Whether the applicant’s final pay or a substantial part of that pay was ready for delivery.  With regard to the first requirement of the discharge certificate, we find the separation letter signed by the Director of the Air Force Review Boards Agency on 27 Aug 19 to be the equivalent to the discharge certificate required under 10 U.S.C. § 1168(a).  The discharge certificate is commonly known as the Secretary of the Air Force (SAF) instrument in the case of officer discharges.  As for the separation notifications that the applicant’s counsel refers to and alleges were backdated, we interpret them to be administrative paperwork similar to the DD Form 214 that merely executes the SAF instrument; they are not discharge certificates within the meaning of 10 U.S.C. § 1168(a).  Hence, since the SAF instrument was signed on 27 Aug 19, we find the Air Force met the first part of the two-part test to establish discharge.  With regard to the second requirement of final pay, we are presented with no evidence that “a substantial part of that pay” was not ready for delivery on 27 Aug 19.  Rather, we only have an affidavit from the applicant stating that “I did not clear the Finance Office until 28 Aug 19.”  We do not have evidence of what “clearing the finance office” means with respect to whether the substantial part of final pay was ready for delivery.  Hence, we do not find that the Air Force failed the second part of the two-part test. 
 
On page 12 of the applicant attorney’s memorandum to the Board, he cites AFI 36-3206, paragraph 4.19: “The unit commander tells the medical treatment facility of the possibility of action against the officer and provides necessary information.”  He then argues that this “clearly requires that the physical exam occur prior to the commencement of the BOI proceedings.”  We disagree that this language mandates a physical examination prior to a BOI.  Nothing in the presented record shows that the BOI was unfairly biased. To the contrary, the BOI determined that the applicant did not commit assault against his wife despite the commander’s findings at NJP.

The complete advisory opinion is at Exhibit H.

The Board sent a copy of the advisory opinion to the applicant on 2 Feb 22 for comment (Exhibit I), and the applicant replied on 17 Feb 22.  In his response, the applicant’s counsel contends the law regarding retirement eligibility is quite clear requiring 20 years or more of service and per 10 U.S.C. § 1168(a), a member cannot be discharged from active duty until the government delivers, or has ready for delivery, his discharge certificate and at least a substantial part of his final pay.  In the applicant’s case, his discharge was ineffective because the Section 1168(a) elements necessary for a valid discharge were not properly completed.  The advisory opinion (AO) attempts to obviate the Congressional mandates and the court holdings.  The AO opines that it does “not consider the allegedly backdated discharge notifications to be dispositive."  To support this opinion, the AO cites the U.S. Court of Appeals for the Fifth Circuit's decision considering “the question of how the delivery of a DD Form 214 impacts a member's separation date.”  The AO grounds its position on that court's finding that the language of 10 U.S.C. § 1168(a) “does not require actual delivery of the DD Form 214, and legislative history reveals that the purpose of the statute is to ease the military's administrative burden associated with discharges.  Hinging a service member's status on whether he knew the exact date on which his DD Form 214 was issued would be inconsistent with text and purpose of statute.”  In United States v. Butler, 637 F.3d 519, (2011), the AO fails to provide the proper context for the Butler court's finding regarding the statutory delivery requirement.   The context and facts underlying the Butler court's decision prove that the AO's position of "the allegedly backdated discharge notifications" are not dispositive is completely misplaced.  In fact, the Butler holding is completely contrary to the AO position.  The AO's position that actual delivery of the discharge certificate to the applicant is not necessary because “the purpose of the statute is to ease the military’s administrative burden associated with discharges” is disingenuous.  The Butler court clearly defined the appropriate circumstances where delivery of a discharge certificate is unnecessary: 1) when “the discharge documents are ready for delivery, and the service member had notice of the discharge”; and, 2) “when a service member's discharge documents are ready for delivery and both parties understand the situation, delivery is not crucial.”

The incontrovertible fact that the applicant was engaged in Air Force duties on the day following the date the Air Force published as his separation date demonstrably proves that neither he nor his chain of command was aware of the Air Force's back-dated attempt to discharge him.  His final pay was not ready for delivery until some date post 28 Aug 19, and his discharge certificate was not delivered to him until 30 Sep 19.  The facts demonstrably prove that the Air Force failed to properly discharge the applicant prior to his completion of 20 years of active federal commissioned service when it failed to comply with the statutorily mandated prerequisites regarding delivery of a discharge certificate and final pay, as well as the regulatory required completion of a proper clearing process.  Accordingly, the applicant requests that this Board provide the "thorough and fitting relief" due him by correcting his records to reflect that his true active duty separation date is, at the earliest, 28 Aug 19, but may be a later date, as determined by this Board, based on the dates of receipt of his final pay and discharge certificate, thereby establishing his eligibility for retirement after 20 years of active federal commissioned service; ordering his retirement effective 28 Aug 19, or such later date as the Board finds; and, ordering the retired pay owed him from his corrected date of retirement.

The applicant’s complete response is at Exhibit J. 

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendations of the offices of primary responsibility and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Specifically, the Board notes the Board of Inquiry (BOI) hearing and discharge was consistent with the substantive requirements of the regulations and was within the commander’s discretion.  Nor was the BOI hearing and discharge unduly harsh, unfairly biased, or disproportionate to the offenses committed.  The Board took notice of the applicant’s contentions that the separation notifications were allegedly backdated and that his final pay was not ready on 27 Aug 19.   With respect to discharge notifications; the Board does not find  the allegedly backdated discharge notifications to be in error and considers them to be administrative paperwork similar to the DD Form 214 which merely executes the Secretary of the Air Force instrument, as they are not discharge certificates within the meaning of 10 U.S.C Section 1168(a).  With respect to the applicant’s contention that a substantial part of his final pay was not ready on 27 Aug 19; the Board finds no evidence that a substantial part of the applicant’s pay was not ready for delivery on 27 Aug 19.  Furthermore, the Board applied liberal consideration to the evidence submitted by the applicant; however, it is not sufficient to grant the applicant’s request as there is no evidence his deployment experiences caused any mood or behavioral changes causing his conduct, BOI hearing, and discharge.  Therefore, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2021-00868 in Executive Session on 26 Jan 22 and 8 Mar 22:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 20 Jul 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2SSR, dated 2 Apr 21.
Exhibit D:	Letter, SAF/MRBC, w/atchs (Post-Service Request and Liberal Consideration  
                  Guidance), dated 20 Sep 21.
Exhibit E:	Advisory Opinion, AFBCMR Psychological Advisor, dated 10 Dec 21.
Exhibit F:	Notification of Advisory, SAF/MRBC to Applicant, dated 20 Dec 21.
Exhibit G:	Applicant’s Response, dated 4 Jan 22.
Exhibit H:	Advisory Opinion, DAF/JA, dated 1 Feb 22.
Exhibit I:	Notification of Advisory, SAF/MRBC to Applicant, dated 2 Feb 22.
Exhibit J:	Applicant’s Response, dated 17 Feb 22.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.